#### The People of the State of New York, Appellant, *v.*A Certain Corporation Called Charles Schweinler Press, Respondent.

First Department,

July 10, 1914.

Constitutional law — police power — validity of section 93b of the Labor Law regulating employment of women in factories at night.

Section 93b of the Labor Law as added by chapter 83 of the Laws of 1913, entitled “ Period of rest at night for women ” and providing that “In order to protect the health and morals of females employed in factories by providing an adequate period of rest at night no woman shall be employed or permitted to work in any factory in this State before six o’clock in the morning or after ten o’clock in the evening of any day,” is a valid exercise of the police power and violates neither the State nor Federal Constitutions.

Clarke and Dowling, JJ., dissented.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, entered in the office of the clerk of said court on the 2Hh day of April, 1914, granting a motion in arrest of judgment herein.

Sentence was suspended upon the defendant, after his conviction, upon an information filed by the district attorney of the county of New York, charging him with violating section 93b of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], added by Laws of 1913, chap. 83), by employing a woman between the hours of ten p. in. and six A. M.

The court below suspended sentence in this case upon the ground that this enactment was in violation of section 6 of article 1 of the Constitution, which provides that *“*No person shall * * * be deprived of life, liberty or property without due process of law,” and was also in violation of section 1 of the 14th Amendment to the Constitution of the United States which provides that *“*No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ” From the order suspending sentence the People appeal

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      *William A. De Ford, Assistant District Attorney,*for the appellant.

*Alfred E. Ommen,*for the respondent.

*Walter Jeffreys Carlin,*attorney for Association of Ice Cream Manufacturers of New York State, who filed a brief and was heard in support of the order of the court below, by leave of the court.

Ingraham, P. J.:

The sole question presented upon this appeal is whether this statute (Laws of 1913, chap. 83) violates either the State or Federal Constitution.

In the year 1903, chapter 184 of the laws of that year, an act was passed by the Legislature of the State of New York which provided that *“*No female shall be employed, permitted or suffered to work in any factory in this State before six o’clock in the morning, or after nine o’clock in the evening of any day; or for more than ten hours in any one day, except to make a shorter work day on the last day of the week; or for more than sixty hours in any one week, or more hours in any one week than will make an average of ten hours per day for the whole number of days so worked.” (See Labor Law [Gen. Laws, chap. 32; Laws of 1897, chap. 415], § 77, as amd. by Laws of 1903, chap. 184.) The question of the constitutionality of that law came before the Court of Special Sessions of the City of New York, which held the act unconstitutional and, therefore, suspended sentence after conviction. That determination was affirmed on appeal to this court *(People*v. *Williams,*116 App. Div. 379) and by the Court of Appeals (189 N. Y. 131). In those decisions it seems to have been conceded that so far as the statute fixed the limitation as to daily and weekly employment it could have been sustained, but that the provision denying an employer the right to permit or suffer a female employee to work in a factory before six o’clock in the morning or after nine o’clock in the evening of any day, and making the violation of that statute a misdemeanor under section 3841 of the Penal Code (now Penal Law, § 1275), was in violation of the State Constitution and, therefore, void. The opinion of the Court of Appeals was written by Judge *622Gray. He cites article 1, section 6, of the Constitution, which provides that “Ho person shall * * * be deprived of life, liberty or property without due process of law,” as the provision of the Constitution which rendered that enactment void, saying: “The provisions of the State and of the Federal Constitutions protect every citizen in the right to pursue any lawful employment in' a lawful manner. He enjoys the utmost-freedom to follow his chosen pursuit and any arbitrary distinction against, or deprivation of, that freedom by the Legislature is an invasion of the constitutional guaranty. Under our laws men and women now stand alike in their constitutional rights and there is no warrant for making any discrimination between them with respect to the liberty of person, or of contract. It is claimed, however, in this case, that the enactment in question can be justified as an exercise of the police power of the State; having for its purpose the general welfare of the State in a measure for the preservation of the health of the female citizens. * * * In providing that ‘ no female shall be employed, permitted, or suffered to work in any factory in this State before six o’clock in the morning, or after nine o’clock in the evening of any day,’ she is prevented, however willing, from engaging herself in a lawful employment during the specified periods of the twenty-four hours. * * * I find nothing in the language of the section which suggests the purpose of promoting health, except as it might be inferred that for a woman to work during the forbidden hours of night would be unhealthful. If the inhibition of the section in question had been framed to prevent the ten hours of work from being performed at night, or to prolong them beyond nine o’clock in the evening, it might, more readily, be appreciated that the health of women was the matter of legislative concern. That is not the effect, nor the sense, of the provision of the section with which, alone, we are dealing. * * * It is clear, as it seems to me, that this legislation cannot, and should not, be upheld as a proper exercise of the police power. It is, certainly, discriminative against female citizens, in denying to them equal rights with men in the same pursuit. The courts have gone very far in upholding legislative enactments, framed clearly for the welfare, comfort and health of the community, and that a *623wide range in the exercise of the police power of the State should be conceded, I do not deny; but, when it is sought under the guise of a labor law, arbitrarily, as here, to prevent an adult female citizen from working at any time of the day that suits her, I think it is time to call a halt. It arbitrarily deprives citizens of their right to contract with each other.” And the court cites, as an authority for its decision, the case of *Lochner*v. *New York*(198 U. S. 45).

From the most careful reading of that opinion it seems to me that the judgment of the court was based upon the fact that the provisions of the statute then under review were not enacted for the welfare, comfort and health of the community, but that -it was sought under the guise of a labor law to prevent an adult female citizen from working at any time of the day that suits her; and for that reason the act was condemned.

Turning to the case of *Lochner*v. *New York*(198 U. S. 45), upon which Judge Gray seems to have principally relied, it was there held that as a labor law pure and simple the prohibition could not be sustained, and we may assume in this case that as a labor law pure ánd simple this prohibition preventing women from working in a factory after ten o’clock at night would be unenforcible. It was also held that that law did not affect any portion of the public except an individual engaged in the occupation of a baker, and.if the law must be upheld at all it must be upheld as a law pertaining to the health of an individual engaged in the occupation of a baker. The opinion then discusses the question as to whether the law related to the health of an individual engaged in that occupation, and the court lays it down as a general principle that *“*The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. * * * We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a *624health law to safeguard the public health or the health of the individuals who are following the trade of a baker. * * * We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the Legislature to _ interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employé.” And then, in finally condemning the law, the court said: *“*It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employés (all being men, *sui juris),*in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the- freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution. ” From that opinion four justices of the court dissented upon the ground that the statute was enacted in order to protect the physical well-being of those who work in bakery and confectionery establishments, and the reason in the dissenting opinion is based upon the fact that the number of hours during which workmen should continuously labor in particular occupations involving the physical strength and safety of workmen is one within the general control of the States.

Since these two cases were decided the question of the effect of continuous labor and the hours of labor as affecting the moral and physical health of women has been the subject of considerable investigation and discussion, and I think it may fáirly be said that it has come to be generally recognized both in the legislative and judicial departments of the United States and of several of the States, that the State is largely interested in conserving both the morals and physical condition of women. By the common law when the Federal Constitution and the Constitution of the State of New York were first adopted, the equality of the sexes was not recognized nor was it in either the Federal Constitution or in the Constitution of this State. The *“*subjection of woman ” was recognized by the law of the land. No married woman could make a contract which was binding upon her or her husband without his consent; the wages of all *625married women when earned became the property of the husband; and the equality of women to contract or to enjoy the fruits of their labor was certainly not protected by any provision of the Federal or State Constitutions with which I am acquainted. The law now as then recognizes a distinction between the sexes and justifies legislative enactments for the protection of women which have not been and are not now considered necessary in the case of men. Many sections of the Penal Law of New York can be cited which are deemed necessary to protect women from the assaults and solicitations of men even in cases where their consent is not wanting. Certainly the question of female prostitution is one that is intimately connected with the morals of the people and universal experience has shown that it is the female sex that is exposed to the danger. And from the purely physical standpoint the danger of the impairment of the health of women is equally obvious. Upon the health of women as the childbearing sex necessarily depends the future health of succeeding generations. Any occupation that tends to lower the vitality of woman and interferes with her bearing' healthy children directly impairs the health and capacity of future generations and is a subject of the utmost public concern. So that, it seems to me, both from a moral and physical standpoint to regulate the work of women both as to the nature of the occupation at which they work and the hours that they work has a direct bearing upon the welfare of the State and of future generations. This question has of late years received much attention from those engaged in the investigation of problems of this character, and there is submitted by the People as part of their argument what is called “A Summary of Facts of Knowledge ” on this subject which contains the reports and investigations of various scientists and scientific bodies on the subject of work, and especially of the effect of night work upon both men and women. From this summary it can be seen how much the question has been studied within the last ten or fifteen years. The necessity of healthful rest is emphasized. The bad effect of night work upon the individual seems to be the unanimous opinion of all those who are qualified to judge, *626And that the practical effect of the lack of normal rest upon women is more pronounced than upon men seems to be recognized by the universal opinion of those who have investigated the subject.

As a consequence of this research the Legislature, by chapter 561 of the Laws of 1911 and chapter 21 of the Laws of 1912, provided for a factory investigating commission which was authorized to inquire into the conditions under which manufacture is carried on throughout the State and to recommend to the Legislature such remedial legislation as it should find necessary and desirable, under the conditions as discovered by its investigation, to protect the health and welfare of workers in factories. That investigation seems to have been quite thoroughly conducted and resulted in a report to the Legislature which, among other remedial legislation, recommended the enactment of the statute now under consideration. The report of that commission is startling both in regard to the effect on the physical well-being of the night-workers and the moral effect upon the women who are employed in factories at night. Those conditions were not and could not have been presented to the court when the former statute was under review, and certainly would not justify the observation that Judge Gray made in *People*v. *Williams {supra): “I*find nothing in the language of the section which suggests the purpose of promoting health, except as it might be inferred that for a woman to work during the forbidden hours of night would be unhealthful.” And it was in consequence of this report to the Legislature, the facts there disclosed and the recommendation of the commission that the act in question was passed. The act as recommended by the commission and as passed by the Legislature provided as follows: *“*Period of rest at night for women. In order to protect the health and morals of females employed in factories by providing an adequate period of rest at night, no woman shall be employed or permitted to work in any factory in this State before six o’clock in the morning or after ten o’clock in the evening of any day.”

If the facts as now presented are true, and they are based upon the official report of a commission authorized by law to investigate the subject; and if women who work in factories at night *627are exposed to dangers which affect them both physically and morally and which justify under the police power legislation for their protection, this legislation is directed to accomplish that purpose. There is here disclosed, as the general result of a scientific investigation by the State into the conditions existing in the factories of the State, a condition which would subject a large proportion of the women of the State to both physical and moral danger from its continuance, and we have legislation directly enacted for the purpose of procuring as to a large proportion of the people the prevention of physical and moral impairment. Such legislation I conceive to be within the police power of the State.

That this condition is recognized outside of this State is apparent from the fact that in at least seven States statutes have been passed prohibiting the employment of women during the night time, and so far as appears none of these statutes have been held to violate any constitutional provision. It has always been recognized in New York that if a statute has a reasonable connection with the public health, welfare and safety it is within the police power. (See *People*v. *Ewer,*141 N. Y. 129.) In *Muller*v. *Oregon*(208 U. S. 412) the question before the court was whether an act of the State of Oregon which prohibited the employment of a female in any factory or laundry in the State for more than ten hours during any one day was void. This statute was held within the police power by the State courts, and the question presented to the Supreme Court was whether it violated any provision of the Federal Constitution. The opinion, after calling attention to the *Lochner Case (supra),*called attention to the summary submitted on behalf of the People in this case, and it is spoken of as “ a very copious collection of all these matters.” The court discusses the position of women, and states as a fact of common knowledge: “That woman’s physical structure, and the performance of maternal functions, place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, *628and as healthy mothers are essential to vigorous offspring, the • physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. * * * Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions,- and there are many respects in which she has an advantage over him [man]; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of *629the burdens which rest upon her. * * * The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform.” And this opinion was concurred in by all the justices of the Supreme Court of the United States.

In view of this judgment of the same court that pronounced the judgment in the case of *Lochner*v. *New York (supra),*mainly relied upon by the Court of Appeals in the *Williams Case (supra)*to sustain its judgment there, further discussion as to the power of the Legislature to legislate for the protection of women would seem to be unnecessary. With the facts and conditions existing in Hew York now before the court, it certainly cannot be said that this legislation is not directly concerned with the moral and physical well-being of women or does not tend to her protection and the welfare and well-being of all the people of the State. Entertaining these views, as the result of the scientific investigation of the question and the trend of legislation in the various States of this country and foreign countries, it seems to me that this act has a direct effect upon the well-being of women and of the race; was within the police power of the State; violates no provision of either the Federal or State Constitution; and our decision is not controlled by *People*v. *Williams (supra).*

For these reasons I advise the reversal of the order appealed from and a denial of the motion in arrest of judgment.

Laughlin. J., concurred; Clarke and Dowling, JJ., dissented.

Hotchkiss, J.:

*“*It is open to serious question, which I leave to the reader’s pondering, whether, among national manufactures, that of Souls of a good quality may not at last turn out a quite leading lucrative one.” These words of John Buskin fall less strangely on our ears than on those of the generation of 1860 to which they were addressed. The reason why is not difficult to understand. In the fifty odd intervening years the world has traveled far. With the introduction of machinery and factory labor, new problems, social, political and economic, arose and developed rapidly. Their existence, at first apparent

*630to but few, had to he recognized by many, before practical means for their amelioration could be agreed on and formulated into laws. In a general way, so far as legislation was concerned, these measures, intended for the public good, commonly cun tailed individual liberty. Civilization has always made its way by similar restrictions. In this country our written constitutions, particularly when interpreted in the light of precedents arising under materially different conditions, were found to be obstacles in the way of many projected laws. The liberty to contract or to employ one’s labor in any lawful occupation and to the extent which his needs or his desire might dictate, has been one of the grounds on which strenuous opposition to much of our social legislation has been based. That the people, acting through their Legislature, have the right to pass laws to protect the race, is indisputable. If it is lawful to prohibit individual suicide it must equally be lawful to prevent bodies of men from destroying or materially injuring themselves by harmful labor. But watchful as courts should always be to see that the liberty of the individual is not unlawfully and insidiously invaded by laws ostensibly enacted for his benefit, many acts have been declared unconstitutional because, within reason, they bore no relation to the condition or peril to which they purported or were claimed to be directed, and it is on this ground, as I read it, that in the *Williams*case *(People*v. *Williams,*189 N. Y. 131) the act of 1903 was declared void. Says Judge G-ray (p. 134): “I find nothing in the language of the section which suggests the purpose of promoting health, except as it might be *inferred*that for a woman to work during the forbidden hours of night would be unhealthful.” And again (pp. 134, 135): “If the inhibition of the section in question had been framed to prevent the ten hours of work from being performed at night, or to prolong them beyond nine o’clock in the evening, it might, more readily, be appreciated that the health of women was the matter of legislative concern. That is not the effect, nor the sense, of the provision of the section with which, alone, we are dealing. It was not the case upon which this defendant was convicted. ” Ho such language is applicable to the statute, of 1913 here involved. Its title expressly recites that it is directed “to protecting the health *631and morals of females employed in factories by providing an adequate period of rest at night,” and its text, directly in furtherance of its title, “in order to protect the health,” etc., of women so employed, prohibits such employment before six A. M. and after ten p. M. We should be closing our eyes to notorious and undisputed facts if we did not take notice that "between the years 1903 and 1913 investigations pursued in almost every country of Europe as well as in this country had demonstrated the harmfulness to women of factory labor as it is commonly pursued and especially of such labor at night. The act under consideration was the result of a report made to the Legislature by a factory investigating commission, by which the original act was proposed. No one who has read that report can for a moment doubt the propriety of the act, having regard for the conditions in this State as disclosed by the report. The voluminous “ Summary of Pacts of Knowledge ” submitted by the learned counsel for the appellant shows how fully the act is in line with world-wide legislation. Under these circumstances, and uncontrolled by binding authority in our own State, the decision of the Supreme Court of the United States in *Muller*v. *Oregon*(208 U. S. 412) furnishes ample precedent for holding the act to be valid.

The order should be reversed.

Laixghlin, J., concurred.

Clarke, J. (dissenting):

However much I might concur with the views of the presiding justice, I think this intermediate court is bound to follow the judgment of the court of last resort. If the *Williams*case is no longer an authority, it is for the Court of Appeals to say so. We have no power to review then' decision.

I, therefore, feel myself constrained to dissent upon that case.

Dowling, J., concurred.

Order reversed and motion in arrest of judgment denied. Order to be settled on notice.